Terry Smith v. State of Florida & Terry Smith v. Mark S. Inch, etc.
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Opinion
Supreme Court of Florida ____________
No. SC18-1763 ____________
TERRY SMITH, Appellant,
vs.
STATE OF FLORIDA, Appellee.
____________
No. SC19-680 ____________
TERRY SMITH, Petitioner,
MARK S. INCH, etc., Respondent.
October 21, 2021
PER CURIAM.
Terry Smith appeals the denial of numerous guilt-phase
claims raised in his initial motion for postconviction relief filed
under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V,
§ 3(b)(1), (9), Fla. Const. For the reasons expressed below, we
affirm the denial of postconviction relief as to the guilt phase and
deny Smith’s habeas petition.
I. BACKGROUND
Terry Smith was convicted of the first-degree murders of
Desmond Robinson, Berthum Gibson, and Keenethia Keenan. He
was sentenced to death for the murders of Gibson and Keenan and
to life for the murder of Robinson. Smith v. State, 139 So. 3d 839,
841 (Fla. 2014). On direct appeal, this Court set forth the facts of
the murders as follows:
While looking for narcotics on June 5, 2007, Terry Smith, then age nineteen, called an acquaintance, Breon Williams. Williams, a street level drug dealer, informed Smith that he was going to purchase some drugs and invited Smith to join him. Smith took Williams up on his offer. In the late evening of June 5, Williams picked Smith up from the home of Smith’s mother. From there they rode on Williams’ motorized scooter to a house in Jacksonville, Florida, where Desmond Robinson and Berthum Gibson sold drugs. Williams had previously purchased drugs from Desmond Robinson at that location. On previous occasions, Williams had entered through the back door of the home, which was locked and contained a sheet of Plexiglas on its interior. When Williams and Smith arrived at the house, they pulled into the driveway, parked Williams’ scooter, and walked up to the back
-2- door. Williams knocked on the door, and Robinson let them in. After Williams and Smith entered the kitchen, Robinson locked the door and left the key in it. When they entered, Gibson and Keenethia Keenan were sitting at a table in the kitchen and dining room area of the home. Williams walked to the kitchen counter, which was located near the door, and began to count his money to determine how much cocaine he could purchase. While Williams was counting his money, he heard Smith say “[g]ive it up,” followed by gunshots. Williams turned to run out of the residence, which required turning the key that was already in the door to unlock it. Before exiting, Williams saw Smith shoot Robinson multiple times. Williams was in such a hurry to leave the house that he left approximately $400 on the kitchen counter and his scooter in the driveway. The State then presented circumstantial evidence that instead of escaping out the back door after killing Robinson, Smith stepped over Robinson’s body and proceeded into the hallway, where he shot in the direction of Gibson and Keenan. Gibson and Keenan each died from a single gunshot wound that was attributed to Smith’s ten millimeter handgun. Keenan’s body was found unarmed in the back of the southeast bedroom, where she died within seconds of the gunshot piercing her heart. When police arrived, they found Gibson, who was still alive despite a gunshot wound to his abdomen. He was leaning against the bed in the same bedroom with a rifle in his hands. Paramedics transported Gibson to the hospital, where he died due to internal injuries from the gunshot wound. Police found shell casings from the gun used by Smith in the kitchen and dining room area as well as in the living room area of the home. They also found shell casings from the rifle used by Gibson in the southeast bedroom and the hallway leading up to the bedroom. After shooting Gibson and Keenan, Smith ran out the back door of the house, touching the Plexiglas portion
-3- of the door on his way out. When police arrived, they found Williams’ money on the kitchen counter and drugs on the dining room table. After exiting the crime scene, Smith called Ullysses Johnson to pick him up from the area. At the time, Johnson was at home playing video games with his brother Raylan Johnson and Jonathan Peterson. The three then picked Smith up near the crime scene. In the car, Smith told them that he had shot three people. After arriving at the Johnsons’ home, Ullysses Johnson and Peterson went inside, while Smith and Raylan Johnson remained outside. Smith gave his gun to Raylan Johnson, who buried it in the yard and then sold it a few days later to Walter Dumas. They also burned Smith’s clothes in a bin that was in the yard. The jury found Smith guilty of first-degree murder for the deaths of Robinson, Gibson, and Keenan.
Smith, 139 So. 3d at 841-42 (alteration in original). We affirmed the
convictions and sentences in 2014. Id. at 841.
II. POSTCONVICTION APPEAL
Smith filed a motion for postconviction relief under Florida
Rule of Criminal Procedure 3.851 and several amendments thereto,
ultimately raising sixteen claims. After holding a case management
conference, the trial court granted an evidentiary hearing on nine
claims. Subsequent to the evidentiary hearing, the trial court
entered an order denying in part Smith’s motion for postconviction
relief and granting in limited part Smith’s motion for postconviction
relief as to a new penalty phase under Hurst v. State, 202 So. 3d 40
-4- (Fla. 2016), receded from in part by State v. Poole, 297 So. 3d 487
(Fla. 2020). 1 This appeal follows.2
A. Ineffective assistance of counsel during the guilt phase
Smith first raises a claim of ineffective assistance of counsel
during the guilt phase. Under Strickland v. Washington, 466 U.S.
668, 686-88 (1984), a defendant alleging that he received ineffective
assistance of counsel has the burden to demonstrate that counsel’s
performance fell below an objective standard of reasonableness. In
order to prevail on a claim of ineffective assistance of counsel, a
defendant must show both that trial counsel’s performance was
deficient and that the deficient performance prejudiced the
defendant. Strickland, 466 U.S. at 687. “Both prongs of the
Strickland test present mixed questions of law and fact.” Johnson v.
State, 135 So. 3d 1002, 1013 (Fla. 2014). “In reviewing a trial
1. Although we have since receded from Hurst, we do not disturb the trial court’s order granting a new penalty phase. See State v. Jackson, 306 So. 3d 936, 945 (Fla. 2020).
2. At the outset, the State questions whether this Court has jurisdiction of this case given the postconviction court’s order granting a new penalty phase pursuant to Hurst. We have previously rejected this argument. See Merck v. State, 260 So. 3d 184, 188 n.1 (Fla. 2018) (“[T]he pending resentencing [under Hurst] does not affect our exclusive jurisdiction over this appeal.”).
-5- court’s ruling after an evidentiary hearing on an ineffective
assistance of counsel claim, this Court defers to the factual findings
of the trial court to the extent that they are supported by
competent, substantial evidence, but reviews de novo the
application of the law to those facts.” Id. (quoting Mungin v. State,
932 So. 2d 986, 998 (Fla. 2006)).
As to the first prong, the defendant must establish “that
counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. A court reviewing the second prong
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Supreme Court of Florida ____________
No. SC18-1763 ____________
TERRY SMITH, Appellant,
vs.
STATE OF FLORIDA, Appellee.
____________
No. SC19-680 ____________
TERRY SMITH, Petitioner,
MARK S. INCH, etc., Respondent.
October 21, 2021
PER CURIAM.
Terry Smith appeals the denial of numerous guilt-phase
claims raised in his initial motion for postconviction relief filed
under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V,
§ 3(b)(1), (9), Fla. Const. For the reasons expressed below, we
affirm the denial of postconviction relief as to the guilt phase and
deny Smith’s habeas petition.
I. BACKGROUND
Terry Smith was convicted of the first-degree murders of
Desmond Robinson, Berthum Gibson, and Keenethia Keenan. He
was sentenced to death for the murders of Gibson and Keenan and
to life for the murder of Robinson. Smith v. State, 139 So. 3d 839,
841 (Fla. 2014). On direct appeal, this Court set forth the facts of
the murders as follows:
While looking for narcotics on June 5, 2007, Terry Smith, then age nineteen, called an acquaintance, Breon Williams. Williams, a street level drug dealer, informed Smith that he was going to purchase some drugs and invited Smith to join him. Smith took Williams up on his offer. In the late evening of June 5, Williams picked Smith up from the home of Smith’s mother. From there they rode on Williams’ motorized scooter to a house in Jacksonville, Florida, where Desmond Robinson and Berthum Gibson sold drugs. Williams had previously purchased drugs from Desmond Robinson at that location. On previous occasions, Williams had entered through the back door of the home, which was locked and contained a sheet of Plexiglas on its interior. When Williams and Smith arrived at the house, they pulled into the driveway, parked Williams’ scooter, and walked up to the back
-2- door. Williams knocked on the door, and Robinson let them in. After Williams and Smith entered the kitchen, Robinson locked the door and left the key in it. When they entered, Gibson and Keenethia Keenan were sitting at a table in the kitchen and dining room area of the home. Williams walked to the kitchen counter, which was located near the door, and began to count his money to determine how much cocaine he could purchase. While Williams was counting his money, he heard Smith say “[g]ive it up,” followed by gunshots. Williams turned to run out of the residence, which required turning the key that was already in the door to unlock it. Before exiting, Williams saw Smith shoot Robinson multiple times. Williams was in such a hurry to leave the house that he left approximately $400 on the kitchen counter and his scooter in the driveway. The State then presented circumstantial evidence that instead of escaping out the back door after killing Robinson, Smith stepped over Robinson’s body and proceeded into the hallway, where he shot in the direction of Gibson and Keenan. Gibson and Keenan each died from a single gunshot wound that was attributed to Smith’s ten millimeter handgun. Keenan’s body was found unarmed in the back of the southeast bedroom, where she died within seconds of the gunshot piercing her heart. When police arrived, they found Gibson, who was still alive despite a gunshot wound to his abdomen. He was leaning against the bed in the same bedroom with a rifle in his hands. Paramedics transported Gibson to the hospital, where he died due to internal injuries from the gunshot wound. Police found shell casings from the gun used by Smith in the kitchen and dining room area as well as in the living room area of the home. They also found shell casings from the rifle used by Gibson in the southeast bedroom and the hallway leading up to the bedroom. After shooting Gibson and Keenan, Smith ran out the back door of the house, touching the Plexiglas portion
-3- of the door on his way out. When police arrived, they found Williams’ money on the kitchen counter and drugs on the dining room table. After exiting the crime scene, Smith called Ullysses Johnson to pick him up from the area. At the time, Johnson was at home playing video games with his brother Raylan Johnson and Jonathan Peterson. The three then picked Smith up near the crime scene. In the car, Smith told them that he had shot three people. After arriving at the Johnsons’ home, Ullysses Johnson and Peterson went inside, while Smith and Raylan Johnson remained outside. Smith gave his gun to Raylan Johnson, who buried it in the yard and then sold it a few days later to Walter Dumas. They also burned Smith’s clothes in a bin that was in the yard. The jury found Smith guilty of first-degree murder for the deaths of Robinson, Gibson, and Keenan.
Smith, 139 So. 3d at 841-42 (alteration in original). We affirmed the
convictions and sentences in 2014. Id. at 841.
II. POSTCONVICTION APPEAL
Smith filed a motion for postconviction relief under Florida
Rule of Criminal Procedure 3.851 and several amendments thereto,
ultimately raising sixteen claims. After holding a case management
conference, the trial court granted an evidentiary hearing on nine
claims. Subsequent to the evidentiary hearing, the trial court
entered an order denying in part Smith’s motion for postconviction
relief and granting in limited part Smith’s motion for postconviction
relief as to a new penalty phase under Hurst v. State, 202 So. 3d 40
-4- (Fla. 2016), receded from in part by State v. Poole, 297 So. 3d 487
(Fla. 2020). 1 This appeal follows.2
A. Ineffective assistance of counsel during the guilt phase
Smith first raises a claim of ineffective assistance of counsel
during the guilt phase. Under Strickland v. Washington, 466 U.S.
668, 686-88 (1984), a defendant alleging that he received ineffective
assistance of counsel has the burden to demonstrate that counsel’s
performance fell below an objective standard of reasonableness. In
order to prevail on a claim of ineffective assistance of counsel, a
defendant must show both that trial counsel’s performance was
deficient and that the deficient performance prejudiced the
defendant. Strickland, 466 U.S. at 687. “Both prongs of the
Strickland test present mixed questions of law and fact.” Johnson v.
State, 135 So. 3d 1002, 1013 (Fla. 2014). “In reviewing a trial
1. Although we have since receded from Hurst, we do not disturb the trial court’s order granting a new penalty phase. See State v. Jackson, 306 So. 3d 936, 945 (Fla. 2020).
2. At the outset, the State questions whether this Court has jurisdiction of this case given the postconviction court’s order granting a new penalty phase pursuant to Hurst. We have previously rejected this argument. See Merck v. State, 260 So. 3d 184, 188 n.1 (Fla. 2018) (“[T]he pending resentencing [under Hurst] does not affect our exclusive jurisdiction over this appeal.”).
-5- court’s ruling after an evidentiary hearing on an ineffective
assistance of counsel claim, this Court defers to the factual findings
of the trial court to the extent that they are supported by
competent, substantial evidence, but reviews de novo the
application of the law to those facts.” Id. (quoting Mungin v. State,
932 So. 2d 986, 998 (Fla. 2006)).
As to the first prong, the defendant must establish “that
counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. A court reviewing the second prong
must determine whether “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Id. “[T]here is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if
the defendant makes an insufficient showing on one.” Id. at 697.
Contained within Smith’s claim of ineffective assistance of
counsel are numerous subclaims. We now address each subclaim
in turn.
-6- 1. Introduction of evidence of lack of remorse
Smith first claims that counsel was ineffective for introducing
into evidence an additional portion of Smith’s taped interrogation in
which detectives repeatedly accused Smith of having no remorse for
the murders.3
On April 1, 2009, Detectives Nelson and Chizik of the
Jacksonville Sheriff’s Office conducted a video-recorded
interrogation of Smith regarding the murders of Robinson, Gibson,
and Keenan, which occurred at Robinson’s house on Ahmad Drive.
At trial, the State introduced portions of the recording, in which
Smith repeatedly denied being involved in the murders or ever
having been inside the Ahmad Drive house. On cross-examination,
defense counsel played an additional portion of the video recording,
in which Detective Nelson continued to ask Smith questions even
after Smith had repeatedly requested to stop the interrogation.
3. Smith also asserts that the additional portion of the video contained the detectives’ opinions of Smith’s guilt, but this argument was not raised in his motion for postconviction relief or the amendments thereto, and it cannot be raised for the first time on appeal. Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982).
-7- During the portion of the video recording played by defense counsel,
the detectives made multiple references to Smith’s lack of remorse.
At the evidentiary hearing, lead trial counsel, Richard Kuritz,
testified that he introduced the additional portion of the video in
order to portray the detectives as dishonest and unethical and show
that they were “running all over” Smith’s constitutional rights.
Counsel said that he wanted to show the jury that the lead detective
was not as charming and nice as he seemed during direct
examination and that he thought that the conduct of the detectives
on the video was more damning to the State’s case than anything
else. Counsel used the interrogation practices displayed on the
video to argue in closing that the detectives also disregarded the
rights of and used heavy-handed interrogation techniques on the
witnesses against Smith in this case—Breon Williams, Ullysses
Johnson, and Jonathan Peterson—in order to get them to implicate
Smith. The trial court concluded that trial counsel’s decision to
introduce the additional portion of the video was a sound, strategic
decision, intended to provide a concrete example of the lead
detective’s aggressive interrogation tactics.
-8- The trial court’s conclusion that counsel’s decision to
introduce the additional portion of the video despite references to
lack of remorse was a sound strategy is supported by competent,
substantial evidence. Smith makes no argument regarding
prejudice except to say that evidence of lack of remorse “has been
found consistently by Florida courts to be highly prejudicial.”
Appellant’s Initial Br. at 67. But Smith does not make clear how
the detectives’ statements about lack of remorse prejudiced him in
the guilt phase, where his defense was that he did not commit the
murders and was not present when they occurred. Because
counsel did not perform deficiently, and Smith has not established
that he was prejudiced by the introduction of the additional portion
of the video, Smith is not entitled to relief on this claim.
2. Stipulation to booking photos and statements written on them
Smith next argues that trial counsel was ineffective for
stipulating to the admission of what appear to be three different
booking photographs of Smith, on each of which a statement was
written by one of the witnesses, which Smith contends is
inadmissible hearsay. The three photographs at issue are State’s
-9- exhibit 12, admitted at trial through Breon Williams; State’s exhibit
85, admitted through Ullysses Johnson; and State’s exhibit 86,
admitted through Jonathan Peterson.
At the evidentiary hearing, when asked why he stipulated to
the admission of the photographs, counsel said that he typically
confers with the State to review exhibits and “try to stipulate to
whatever is going to come into evidence anyway and not to be
obstructionist and not to waste time” if such matters are admissible
or if the witness would otherwise testify to such matters. Each
exhibit will be addressed in turn.
a. State’s exhibit 12
State’s exhibit 12 is a photo of Smith wearing a shirt with the
words “Inmate” and “Department of Corrections” on it. The photo
was part of a six-photograph identification photospread that law
enforcement used to confirm that the shooter Breon Williams knew
as “Terry” was, in fact, Terry Smith. During his interview with
police, Williams identified Smith as the “Terry” he saw shooting at
the Ahmad Drive house by writing on the booking photograph,
“Terry I saw him shoot Desmond. It happened in the kitchen of
Ahmad Drive.” The trial court limited its analysis of this claim to
- 10 - the prejudice prong and concluded that Smith was not prejudiced
by the admission of Williams’ written statement on the photograph
or the fact that State’s exhibit 12 was a booking photo.
The trial court did not err in reaching these conclusions. By
the time the photo was admitted into evidence, the complained-of
hearsay on the photo—that Williams witnessed Smith shoot
Desmond Robinson—had already been properly testified to by
Williams. See Ventura v. State, 794 So. 2d 553, 568 (Fla. 2001)
(finding no merit to a claim of ineffective assistance where the
complained-of hearsay contained testimony that was properly
admitted through other channels (citing United States v. Brooks, 82
F.3d 50, 53 (2nd Cir.1996) (holding that defendant established no
prejudice from counsel’s failure to object to hearsay testimony
where the hearsay contained facts that were already testified to in
admissible form))). Further, there is no reasonable probability that
Smith would have been acquitted had the photo been cropped to
show just Smith’s face.
b. State’s exhibit 85
State’s exhibit 85 is closely cropped, but appears to also be a
booking photograph of Smith, because he is wearing clothing
- 11 - similar to the clothing in State’s exhibit 12, although no writing can
be seen on the clothing in State’s exhibit 85. On the photo,
Ullysses Johnson wrote: “He said he had shot three people, two
dudes and a girl.” The trial court also limited its analysis regarding
State’s exhibit 85 to the prejudice prong, concluding that exclusion
of the written statement would not have created a reasonable
probability that the jury would have acquitted Smith. The trial
court also concluded that Smith was not prejudiced by the fact that
State’s exhibit 85 was a booking photograph, because the photo is
closely cropped, with no writing or insignia visible, and the State
did not refer to the photo as being a “mug shot” or otherwise
suggest that Smith had a criminal background.
The trial court did not err in reaching these conclusions. By
the time State’s exhibit 85 was admitted into evidence, Ullysses
Johnson had already testified that Smith admitted to shooting three
people at the Ahmad Drive house. Further, the State only used the
booking photograph to ask Ullysses Johnson if he could identify the
face in the photo as the person who got in his car and said he shot
three people in June of 2007. There is no reasonable probability
- 12 - that the jury would have acquitted Smith if State’s exhibit 85 had
not been admitted.
c. State’s exhibit 86
State’s exhibit 86 is very closely cropped to Smith’s face and
the clothing he is wearing is not clearly discernible. On the photo,
Jonathan Peterson wrote:
Terry got in the car after we went and picked him up. He said he had touched the door and that he left something on the table, to go back. He had a gun on him when he got in the car, also. When we got back to the house, he changed clothes and told the third man to get rid of the gun. About 30 minutes later he left. A week later he told me that he shot Bert[4] and Desmond. He said that Desmond opened the door and he shot him in the kitchen. Then he said he shot Bert in the living room. He said somebody came through the hallway shooting back at him in the house. He said he then left the house.
The trial court concluded that Peterson’s written statement was
admissible as a prior consistent statement, because trial counsel
extensively attacked Peterson’s credibility by suggesting that his
testimony was motivated by his desire to comply with a favorable
plea agreement he entered, which was contingent upon him
4. “Bert” was a nickname for Berthum Gibson.
- 13 - testifying truthfully against Smith, and trial counsel therefore did
not perform deficiently by stipulating to its admission.
We find no error in the trial court’s conclusion. Peterson’s
written statement would not have been admissible on direct
examination had defense counsel objected. See Demps v. State, 462
So. 2d 1074, 1075 (Fla. 1984) (“The general rule regarding prior
consistent statements, or bolstering testimony, is that such
evidence is inadmissible absent impeachment based on an attempt
to show a recent fabrication or other reason for the witness’s lack of
credibility.”). But the statement would have ultimately been
admitted once trial counsel attacked Peterson’s credibility based on
improper motive. Counsel testified at the evidentiary hearing that
he chose to attack Peterson’s credibility with the plea agreement
even though he knew the result would be that Peterson’s prior
consistent statement would be admissible on redirect to rebut the
charge of improper motive. Counsel considered the alternative
course of action of objecting to the prior consistent statement but
ultimately decided that it was most beneficial to Smith to be able to
attack Peterson with his plea agreement even though it would make
the prior consistent statement admissible. Thus, because counsel
- 14 - knew the statement would ultimately be admitted, it was a
reasonable strategic decision not to object to its admission, and
counsel’s performance was not deficient. See Occhicone v. State,
768 So. 2d 1037, 1048 (Fla. 2000) (“[S]trategic decisions do not
constitute ineffective assistance of counsel if alternative courses
have been considered and rejected and counsel’s decision was
reasonable under the norms of professional conduct.”).
Further, Smith was not prejudiced by Peterson’s written
statement. By the time State’s exhibit 86 was introduced into
evidence, Peterson had already testified that Smith admitted on two
separate occasions to shooting the three victims on Ahmad Drive.
Even if the written statement had been excluded, the jury still
would have learned from Peterson and others that Smith confessed
on multiple occasions, as well as heard from an eyewitness that
Smith shot Robinson, learned that Smith’s palm print was on the
back door of the Ahmad Drive house although he had denied ever
having been there, and learned that Smith carried a ten-millimeter
handgun, which he had on his person the night of the murders.
Thus, there is no reasonable probability that Smith would have
been acquitted had Peterson’s written statement been excluded.
- 15 - Counsel also did not perform deficiently, and Smith was not
prejudiced by the fact that State’s exhibit 86 was a booking photo.
The State did not refer to the photograph as a booking photo, and it
is so closely cropped that the jury would not have been able to
identify it as a booking photo. Thus, any objection to the photo on
the basis that it was a booking photo would have been overruled.
Counsel did not render deficient performance by failing to make a
meritless objection.
d. Ray Dukes’ testimony regarding Breon Williams’ statements
At trial, Ray Dukes, the father of Breon Williams, testified that
a few days after the murders, Williams told him that he and Smith
went to the Ahmad Drive house to purchase narcotics, and while
Williams was counting his money, he heard Smith say “give it up.”
Williams then heard gunshots and ran out the back door. The trial
court concluded that trial counsel did not render deficient
performance by failing to object to this testimony because Williams’
statement was a prior consistent statement that “was admissible to
rebut the inference that Breon Williams’ testimony was a product of
the improper and coercive influence of the detectives,” and trial
- 16 - counsel’s decision not to object to this testimony was a sound
strategic decision.
The trial court was correct that Williams’ statements to Dukes
were admissible as prior consistent statements. “A statement is not
hearsay if the declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement and the
statement is . . . [c]onsistent with the declarant’s testimony and is
offered to rebut an express or implied charge against the declarant
of improper influence, motive, or recent fabrication.” § 90.801(2)(b),
Fla. Stat. (2010). Thus, trial counsel did not render deficient
performance by failing to make a meritless objection. Further,
counsel’s strategic decision to attack Williams’ implication of Smith
as a recent fabrication was sound. Although it led to Williams’
statements to Dukes becoming admissible nonhearsay, counsel was
able to argue in closing the common sense inference that Dukes’
testimony may have been motivated by an interest in keeping his
son out of prison.
There was also no prejudice to Smith by the admission of
Dukes’ testimony because Williams had already testified that in the
days following the murders, he told his father what happened at the
- 17 - Ahmad Drive house. Thus, there is no reasonable probability that
the jury would have acquitted Smith had this testimony been
excluded.
3. Failure to investigate and challenge forensic evidence
Smith argues that counsel was ineffective for failing to
challenge the State’s theory that Smith shot all three victims with a
ten-millimeter Glock, first shooting Robinson in the front of the
house near the kitchen. Smith asserts that counsel should have
hired an expert to advance the theory that Keenan was shot by
Gibson’s AK-47, not Smith’s ten-millimeter. At trial, the medical
examiner, Dr. Giles, testified that Keenan’s gunshot wound was
consistent with a medium to large caliber weapon. Based on the
exterior of the wound and the damage inside her body, he did not
believe that her injury was caused by a high velocity rifle or an AK-
47.
At the evidentiary hearing, Smith presented testimony from
Christopher Robinson, an expert in issues related to crime scene
reconstruction, blood spatter evidence, and firearms. Robinson
testified that it was his opinion that Keenan was shot by Gibson’s
AK-47, but he also testified that it is possible that Keenan was shot
- 18 - by the ten-millimeter. Robinson further testified that the confession
Smith gave to trial counsel that he shot the three victims is
“absolutely” consistent with the evidence in this case.
Smith also presented testimony at the evidentiary hearing
from Dr. Kathryn Pinneri, a forensic pathologist, who testified as an
expert in the field of forensic pathology and gunshot wounds. Dr.
Pinneri did not disagree with Dr. Giles’ opinion at trial that the
injuries to Gibson and Keenan were consistent with a medium to
large-caliber handgun. Dr. Pinneri testified that it was possible that
Keenan was shot with an AK-47 or a ten-millimeter and that the
jury had to look at the totality of the evidence to conclude which
gun shot Keenan. The trial court concluded that counsel was not
ineffective for failing to retain forensic experts.
We agree that trial counsel did not render deficient
performance by failing to hire forensic experts. Trial counsel
testified at the evidentiary hearing that Smith confessed to him that
he killed the three victims with a ten-millimeter handgun, which
aligned with the State’s theory.
We have explained that “[a] decision that lodging a particular
challenge to the validity of evidence would be a waste of resources
- 19 - in light of counsel’s knowledge of corroborating facts [including the
defendant’s confession] can be a reasonable strategic decision.”
Patrick v. State, 246 So. 3d 253, 262 (Fla. 2018) (citing Darling v.
State, 966 So. 2d 366, 382 (Fla. 2007)). Counsel cannot be faulted
for failing to investigate a theory that he had no reason to suspect
would be valid and supported by the evidence. See Rompilla v.
Beard, 545 U.S. 374, 383 (2005) (“[T]he duty to investigate does not
force defense lawyers to scour the globe on the off chance
something will turn up; reasonably diligent counsel may draw a line
when they have good reason to think further investigation would be
a waste.”). Thus, given Smith’s confession to trial counsel that he
shot all three victims with a ten-millimeter handgun, “it was
reasonable trial strategy for counsel not to challenge forensic
evidence that was consistent with this position.” Darling, 966 So.
2d at 382. Counsel’s decision not to hire experts to challenge the
State’s theory that Smith shot Keenan was reasonable under the
circumstances and does not amount to deficient performance.
Further, Smith was not prejudiced by counsel’s failure to call
these experts at trial. As demonstrated by the experts at the
evidentiary hearing, any evidence that counsel could have
- 20 - presented at trial to “challenge” the State’s theory that Smith shot
Keenan would have been equivocal at best and would not have
created a reasonable probability that the outcome of the trial would
have been different. Moreover, the evidence presented at trial that
all three victims were shot by a medium to large-caliber handgun
was not inconsistent with the defense theory that Smith did not
shoot any of the victims.
4. Failure to impeach critical witnesses
Smith next contends that trial counsel was ineffective for
failing to impeach State witnesses Breon Williams, Ray Dukes, Kirk
Brewer, and Jonathan Peterson. Each witness will be addressed in
turn.
a. Breon Williams
First, Smith claims that trial counsel was ineffective for failing
to effectively develop Williams’ self-interest—avoiding charges of
murder and giving false information to a law enforcement officer
concerning the commission of a capital felony—in supporting the
State’s theory of the case and to impeach him with his inconsistent
statements.
- 21 - We agree with the trial court that this claim is conclusively
refuted by the record. At trial, counsel repeatedly highlighted the
fact that Williams initially lied to detectives, claiming that he lacked
any knowledge of the murders. Counsel also pointed out that the
police threatened to charge him for his involvement but that
Williams was never arrested for anything having to do with the
events surrounding the murders. “[C]ounsel cannot be held
ineffective for what counsel actually did.” Bates v. State, 3 So. 3d
1091, 1106 n.20 (Fla. 2009).
b. Ray Dukes
Smith contends that counsel performed deficiently for failing
to impeach Ray Dukes with a prior felony conviction.
Counsel testified at the evidentiary hearing that he made a
strategic decision not to impeach Dukes because Dukes was merely
the father of a key witness, Breon Williams, and Dukes’ testimony
did not damage Smith’s case, because the jury had already heard
the same evidence from Williams. The trial court concluded that
counsel’s reasonable strategic decision not to impeach Dukes did
not constitute deficient performance. Because Smith has failed to
demonstrate that counsel’s actions were outside the wide range of
- 22 - reasonable professional assistance tolerated by Strickland, we find
no error in the trial court’s conclusion.
Smith was also not prejudiced by counsel’s decision not to
impeach Dukes with his prior felony conviction. The jury had
already heard the same substance of Dukes’ testimony from Breon
Williams, which was corroborated by the testimony of Ullysses
Johnson, Jonathan Peterson, and Smith’s palm print on the door at
the Ahmad Drive house. Thus, there is no reasonable probability
that Smith would have been acquitted if Dukes had been
impeached with his prior felony conviction.
c. Kirk Brewer
Smith contends that counsel was deficient for failing to
impeach Kirk Brewer with a prior felony conviction. Brewer testified
at trial that on the night of the murders, Breon Williams asked him
to retrieve Williams’ scooter from Robinson’s house, which Brewer
did. At the evidentiary hearing, counsel stated that there was no
reason to impeach Brewer with his prior conviction because he did
not give any incriminating information against Smith and did not
know that Smith had been at Robinson’s house that night. The
- 23 - trial court concluded that counsel’s decision not to impeach Brewer
was a reasonable strategic decision.
The trial court’s decision is supported by competent,
substantial evidence. Further, counsel did call Brewer’s credibility
into question with the fact that he lied to law enforcement the first
two times he spoke with them about the events surrounding the
murders and that it was not until after the police had already told
Brewer that they knew he had retrieved the scooter for Williams and
after Brewer asked what he had to tell the police in order to end the
interview and be permitted to go home that he finally told police
that he retrieved the scooter for Williams. Counsel even pointed out
that Williams made Detective Nelson put in writing that Brewer
could go home if Brewer said what Detective Nelson wanted him to
say. Counsel did not perform deficiently in declining to impeach
Brewer with his prior felony conviction, and there is no reasonable
probability that Smith would have been acquitted had counsel done
so.
- 24 - d. Jonathan Peterson
impeach Jonathan Peterson based on his four felony convictions
and the testimony of Anthony Vaughn.
As the trial court correctly acknowledged:
On direct examination, the State pointed out Jonathan Peterson pleaded guilty to two counts of manslaughter and one count of possession of a firearm by a convicted felon, was residing in county jail awaiting sentencing, and had a plea deal with the State in return for testimony against Defendant and others. The possession of a firearm by a convicted felon charge would lead a reasonable jury to conclude Jonathan Peterson had previously been convicted of at least one other felony.
(Citation omitted.)
Further, on cross-examination, trial counsel went over
Peterson’s plea deal, pointing out that his second-degree murder
charge had been reduced to two counts of manslaughter to which
he pleaded guilty. And in closing, trial counsel argued that
Peterson’s felony convictions and plea deal undermined his
credibility. Thus, there was no deficiency. See Ferrell v. State, 29
So. 3d 959, 972 (Fla. 2010) (finding no deficiency where the State
brought out the witness’s prior convictions, pending charges, and
- 25 - plea deal on direct examination, and defense counsel discussed the
prior convictions on cross-examination and in closing).
Smith also contends that trial counsel was ineffective for
failing to call Anthony Vaughn at trial to impeach Jonathan
Peterson. At the evidentiary hearing, Vaughn testified that while
he, Peterson, and Raylan Johnson were housed in the Duval
County Jail, Raylan Johnson asked Vaughn to help him
communicate with Jonathan Peterson via sign language regarding
blaming the murders on Smith. Subsequently, Vaughn met Smith
in a different part of the jail and told him about the conspiracy to
blame the murders on him. At the time, Smith and Vaughn were
represented by the same trial counsel. Vaughn told the investigator
on Smith’s case what he knew about Raylan Johnson and Jonathan
Peterson’s plan to blame Smith for the murders. By the time of
Smith’s trial, Vaughn had been transferred to prison, but he was
transported back to Duval County for the purpose of testifying for
the defense at Smith’s trial, although he ultimately did not do so.
At trial, counsel explained that after he, co-counsel, and Smith
discussed the pros and cons of Vaughn’s testimony, it was decided
that he would not testify. The State, who had deposed Vaughn, put
- 26 - on the record at trial that Vaughn would have testified to
communications between Raylan Johnson and Jonathan Peterson
at the time they were all housed in the county jail. The State also
put on the record that it would call a records custodian from the jail
as a rebuttal witness to refute Vaughn’s timeline of when the
communications regarding the alleged conspiracy occurred. The
trial court then conducted a colloquy with Smith, during which
Smith testified that he agreed with the decision that Vaughn would
not testify and that he had had sufficient time to confer with
counsel regarding that decision.
At the evidentiary hearing, trial counsel explained that the
decision not to call Vaughn was based on concerns about Vaughn’s
credibility and associating Smith with Vaughn, who is a convicted
murderer. The trial court concluded that counsel was not deficient
for declining to call Vaughn because from the colloquy conducted
during trial, it was clear that Smith “voluntarily and knowingly
chose not to call Anthony Vaughn as a defense witness to impeach
the credibility of Jonathan Peterson. . . . [T]he record conclusively
refutes Defendant’s desire to call Anthony Vaughn.”
- 27 - We have held that there is no merit to a claim of ineffective
assistance of counsel if the defendant consents to counsel’s
strategy. Gamble v. State, 877 So. 2d 706, 714 (Fla. 2004). Thus,
because it is clear from the record that Smith consented to
counsel’s strategic decision not to call Vaughn, there is no merit to
his claim of ineffectiveness. We have “also consistently held that a
trial counsel’s decision to not call certain witnesses to testify at trial
can be reasonable trial strategy.” Everett v. State, 54 So. 3d 464,
474 (Fla. 2010). Because counsel made a reasonable strategic
decision in light of his concerns about Vaughn’s credibility and
associating Smith with a convicted murderer, there was no deficient
performance. See Occhicone, 768 So. 2d at 1048.
5. Failure to object to improper character evidence
Smith argues that counsel was ineffective for failing to object
to the State’s repeated elicitation of improper evidence of Smith’s
character from its witnesses.
a. Evidence that Smith harbored Edward Haney
At trial, Edward Haney, who was Smith’s best friend around
the time of the murders, testified that Smith allowed Haney to stay
at his house in 2008, knowing that Haney was wanted in
- 28 - connection with another unrelated shooting and attempting to
evade arrest. Smith asserts that counsel should have objected to
this testimony as inadmissible collateral crime evidence under
section 90.404(2), Florida Statutes (2010), because it was relevant
solely to prove bad character or propensity. The trial court
concluded that trial counsel did not perform deficiently in failing to
object to this testimony because it was relevant to and probative of
Haney’s credibility.
In general, under Williams v. State, 143 So. 2d 484 (Fla. 1962),
evidence of any facts relevant to a material fact in issue, except
where sole relevancy is character or propensity of accused, is
admissible unless precluded by some specific exception or rule of
exclusion. Since evidence that Haney was staying with Smith while
he was wanted for murder was relevant to explain why Smith
confessed to Haney nearly a year after the murders in this case, its
sole relevancy was not the character or propensity of Smith. Smith
has not identified any rule or exception that would preclude
admission of this evidence. Therefore, it was admissible at trial,
and Smith has failed to establish that counsel performed deficiently
by failing to object.
- 29 - Further, Smith has failed to establish prejudice. There is no
reasonable probability that the jury would have acquitted Smith but
for the fact that they were made aware that Haney was wanted at
the time he was staying with Smith.
b. Evidence that witnesses feared retaliation
Smith next complains that trial counsel did not object when
Breon Williams, Jonathan Peterson, and Ullysses Johnson testified
they were afraid of retaliation by Smith while citing to no specific or
general threats. Breon Williams testified that he did not contact
police after fleeing from the murder scene and that he initially lied
to the police—telling them that he did not know anything about the
murders—because he feared retaliation from Smith. Ullysses
Johnson testified that he did not contact the police with his
knowledge of Smith’s involvement in the murders and that he
initially lied when he was brought in for questioning because he
was nervous about being at the police station, scared that he might
be in trouble, and concerned that Smith might retaliate. Jonathan
Peterson also testified that he did not go to the police with his
knowledge of Smith’s involvement in the murders because he feared
retaliation and because he “liv[es] by the code in the streets,”
- 30 - meaning “you just don’t go volunteer information” because “[i]t gets
you killed.” Peterson also said that when he was interviewed by
police, he was reluctant at first for the same two reasons.
The trial court concluded that evidence that these three
witnesses feared retaliation by Smith was relevant to their
credibility and admissible “because it provide[d] a plausible
explanation for why they did not voluntarily come forward and
initially denied having knowledge about the triple homicide”;
therefore, counsel’s failure to object did not amount to deficient
performance.
There is competent, substantial evidence in the record to
support the trial court’s conclusion. The credibility of witnesses is
always in issue, and this testimony was relevant to explain why the
witnesses did not come forward on their own and why they initially
lied to law enforcement when questioned about the murders.
Although the testimony regarding the witnesses’ “fear of retaliation”
was prejudicial to Smith, its probative value was not outweighed by
the danger of unfair prejudice to Smith. Counsel was therefore not
deficient for failing to object to this admissible evidence.
- 31 - Further, even if evidence that the witnesses feared retaliation
were inadmissible, Smith would not have been prejudiced by
counsel’s failure to object. As Smith acknowledges in his brief, the
witnesses testified “they were afraid of Smith while citing to no
specific or general threats.” It would have been far more prejudicial
to Smith, had the witnesses elaborated and testified to specific
threats Smith had made to them or provided other reasons to
justify their fear of him. The testimony of each witness’s fear of
retaliation was also brief and not a feature of any witness’s
testimony. It is clear from the context in which each statement was
elicited that these statements were being used to explain the
witnesses’ reluctance to talk about what they knew about the
murders rather than to denigrate Smith’s character. There is no
reasonable probability that Smith would have been acquitted had
this testimony been excluded.
c. Reference to Smith “picking” the witnesses
Finally, Smith points to statements made by the State in its
closing argument in which the State acknowledged that Jonathan
Peterson, Ullysses Johnson, and Edward Haney may not be “liked”
by the jury and stated that Smith “chose these witnesses” by
- 32 - confessing to them. Smith faults counsel for failing to raise “any
relevance objection for offering evidence of uncharged bad acts” and
argues that “[d]ue to counsel’s failure to object to this inadmissible
testimony, the jury was allowed to hear irrelevant, improper
testimony that only served to denigrate Smith’s character and
invited the jury to convict based on facts unrelated to the charges.”
Appellant’s Initial Br. at 100-01. But because the State’s closing
argument was not evidence or testimony, the relevance objection
that Smith argues should have been raised would have been
overruled. Thus, this claim is without merit.
6. Failure to raise a Confrontation Clause challenge to the medical examiner’s testimony
The autopsies of the three victims in this case were conducted
by three different medical examiners. Smith asserts that trial
counsel was ineffective for failing to object to Dr. Giles testifying to
the findings and conclusions of the other two medical examiners
regarding the cause and manner of death of Gibson and Keenan
and the exhibition of photographs from those autopsies, because he
argues that testimony violated the Confrontation Clause. But
- 33 - because there was no violation of the Confrontation Clause, any
such objection would have been meritless.
We have previously held that a testifying medical expert may
offer an opinion based on an autopsy performed by a non testifying
expert without violating the Confrontation Clause. Brooks v. State,
175 So. 3d 204, 237 (Fla. 2015); see also Capehart v. State, 583 So.
2d 1009, 1012-13 (Fla. 1991) (concluding that there was no error in
allowing chief medical examiner, who based her opinion on autopsy
report, toxicology report, evidence receipts, photographs of body,
and all other paperwork filed in case, to testify regarding cause of
death and condition of victim’s body, although she did not perform
autopsy); Geralds v. State, 674 So. 2d 96, 100 (Fla. 1996) (finding
no abuse of discretion where the trial court allowed a pathologist
who had not performed the victim’s autopsy to offer expert
testimony as to the manner and cause of death of the victim).
Dr. Giles testified that he reviewed the files prepared by the
two medical examiners who conducted the autopsies on Gibson and
Keenan. The autopsy reports were not admitted into evidence, and
it is clear from the record that Dr. Giles testified to his independent
opinions, formed after reviewing technical facts contained in the
- 34 - reports and the photographs taken during those autopsies.
Because his judgment and methods were subject to cross-
examination, the Confrontation Clause was not violated. Trial
counsel was not deficient in declining to raise a futile objection.
Smith has failed to develop his claim that Dr. Giles’ use of the
photographs taken during the autopsies of Gibson and Keenan
violated the Confrontation Clause and is therefore not entitled to
relief on that claim. See Heath v. State, 3 So. 3d 1017, 1029 n.8
(Fla. 2009) (“Vague and conclusory allegations on appeal are
insufficient to warrant relief.”).
7. Failure to advance Smith’s defense
Smith alleges that trial counsel performed deficiently by
ignoring Smith’s account of what happened at the Ahmad Drive
house on the night of the murders and choosing to present a false
defense instead by arguing that Smith did not commit the murders
and suggesting that Raylan Johnson was the responsible party.
At the evidentiary hearing, trial counsel testified that Smith
confessed to him that he committed the murders. Smith told
counsel that he went with Breon Williams to purchase drugs from
Robinson, but in the course of the drug transaction, initiated a
- 35 - robbery, and told Robinson to “give it up” before shooting him.
Smith admitted that he then proceeded further into the home and
shot both Gibson and Keenan. Smith said that he fled the home
without taking the drugs or money that were left out because
somebody was shooting back at him. Trial counsel found Smith’s
confession to be consistent with his evaluation of the physical
evidence. Trial counsel also testified that Smith told him that he
had confessed to Haney, Peterson, Ullysses Johnson, and Raylan
Johnson.
Smith testified at the evidentiary hearing that he told trial
counsel that when he and Williams arrived at the Ahmad Drive
house, Smith said he saw an unknown man with a light brown
complexion standing in the kitchen area and arguing with Robinson
about money the man was owed. Williams stepped outside to take
a phone call, and after Robinson locked the door behind Williams,
the unknown man pulled out a handgun and started shooting.
Smith unlocked the door, ran to some nearby apartments, and
called Raylan Johnson to pick him up.
Smith said that because he had told police that he had never
been to the house on Ahmad Drive, trial counsel advised him that
- 36 - this version of events would not go over well with the jury. Smith
said trial counsel told him that it would be better to present the
defense that Raylan Johnson and Breon Williams were responsible
for the murders, because Raylan Johnson had been going around
bragging about committing the murders and Williams had admitted
to being at the scene.
The trial court found Smith’s testimony incredible. The court
concluded that Smith never told trial counsel about an unidentified
man being the assailant and denied relief on this claim.
“This Court is highly deferential to the postconviction court’s
factual findings and ‘will not substitute its judgment for that of the
trial court on . . . the credibility of the witnesses and the weight to
be given to the evidence.’ ” Mosley v. State, 209 So. 3d 1248, 1263
(Fla. 2016) (alteration in original) (quoting Wyatt v. State, 71 So. 3d
86, 105 (Fla. 2011)). “This is because ‘the trial judge is there and
has a superior vantage point to see and hear the witnesses
presenting the conflicting testimony.’ ” Wyatt, 71 So. 3d at 105
(quoting State v. Spaziano, 692 So. 2d 174, 178 (Fla. 1997)). Here,
the trial court denied relief on the basis that trial counsel’s
testimony was more credible than Smith’s testimony and Smith’s
- 37 - testimony was wholly inconsistent with the evidence presented at
trial and the evidentiary hearing. The record provides competent,
substantial evidence supporting the trial court’s findings, and we
will not substitute our judgment for that of the trial court on the
credibility of the witnesses.
Further, in light of Smith’s palm print at the Ahmad Drive
house, his denial of ever having been there, evidence that he
confessed to four people on at least three occasions, and eyewitness
testimony that he initiated the shooting and shot Robinson, trial
counsel was not deficient in making the strategic decision to
present a defense of reasonable doubt after considering alternative
courses of action. See Occhicone, 768 So. 2d at 1048.
Cumulative Prejudice Analysis
We have resolved two of Smith’s claims based on a lack of
prejudice without resolving whether counsel’s performance was
deficient. These claims are those relating to (1) trial counsel’s
failure to challenge the admissibility of State’s exhibit 12, a
photograph in which Smith is wearing a shirt with the words
“Inmate” and “Department of Corrections” easily discernible, on
which Breon Williams wrote, “Terry I saw him shoot Desmond. It
- 38 - happened in the kitchen of Ahmad Drive,” and (2) trial counsel’s
failure to challenge the admissibility of State’s exhibit 85, a closely
cropped photograph of Smith that appears to also be a booking
photograph, because he is wearing clothing similar to the clothing
in State’s exhibit 12, although there is no visible writing on the
clothing identifying Smith as an inmate, and on which Ullysses
Johnson wrote, “He said he had shot three people, two dudes and a
girl.”
Even if State’s exhibit 12 had been excluded or cropped down
to show only Smith’s face, the jury still would have heard from
Breon Williams that he saw Smith shoot Desmond Robinson in the
kitchen of the house on Ahmad Drive. And even if State’s exhibit
85 had been excluded or cropped down to only show Smith’s face,
the jury still would have heard Ullysses Johnson testify that Smith
confessed that he shot the three victims at the Ahmad Drive house.
Further, in addition to testimony from Williams that he saw Smith
initiate the shooting and shoot Robinson and Ullysses Johnson’s
testimony that he heard Smith confess, the evidence against Smith
included testimony from Jonathan Peterson and Edward Haney
that Smith confessed to each of them on different occasions and
- 39 - Smith’s palm print on the interior of the back door of the house on
Ahmad Drive, which contradicted his assertion that he had never
been inside the house. As a result, Smith has not demonstrated
that any alleged deficiency in the failure to object to State’s exhibits
12 and 85 would undermine confidence in the outcome.
B. Newly discovered evidence
Smith argues that he is entitled to relief based on newly
discovered evidence in the form of Edward Haney’s recantation of
Smith’s confession to him. At trial, Edward Haney testified that he
was staying with Smith at his home in early April 2008, while
Haney was attempting to evade arrest in another, unrelated
shooting. While Haney was staying with Smith, the case in which
Haney was wanted was featured on the local news, and Haney’s
picture was shown as being wanted in connection with that
shooting. Haney testified that after his picture was shown on the
news, Smith told him that he had killed three people on Ahmad
Drive and was not caught. Smith told Haney that he and Breon
Williams went to buy drugs from Robinson. Smith said that he
started shooting at the people in the house and shot Robinson,
Gibson, and a female he did not know. Smith said that Williams
- 40 - got scared and tried to leave but dropped the keys to the door
before he was eventually able to get the door unlocked and get out.
Smith told Haney that he left the murder scene on foot and that he
used a ten-millimeter handgun to shoot the victims.
After Haney was apprehended on April 15, 2008, Detective
Nelson went to the jail to talk to Haney about the Ahmad Drive
murders. Although Smith was Haney’s best friend, Haney took
Detective Nelson’s advice to look out for himself and told Detective
Nelson what he knew about Smith’s involvement in the murders. In
October 2010, Haney pleaded guilty to a number of charges in
connection with the unrelated shooting and received a number of
lengthy sentences, including a forty-year sentence with a twenty-
five-year minimum mandatory for attempted first-degree murder.
Haney was not promised anything for his testimony against Smith.
Haney testified at Smith’s trial that after his guilty plea in
October 2010, he was transferred to prison. Haney was transported
back to Duval County in December 2010 to give a deposition in
Smith’s case. Haney said that prior to that deposition, he had
never talked to the state attorney’s office about Smith’s case.
Haney further testified that the Monday before he testified in
- 41 - Smith’s trial, Smith tried to convince him to testify that he had only
implicated Smith because the police told him to do so. Smith also
told Haney to testify that Raylan Johnson committed the murders.
Haney testified that he was telling the truth about what Smith told
him and that his only knowledge of the Ahmad Drive murders came
from Smith.
By the time of the evidentiary hearing in December 2017,
Haney’s story had changed drastically. Haney testified at the
evidentiary hearing that the prior statements he made to Detective
Nelson, at his deposition, and at Smith’s trial were not truthful and
that Smith never confessed to him. Haney said that some of the
information he gave to Detective Nelson and at his deposition came
from Raylan Johnson and other information he provided was just
what he had heard on the streets. Haney also testified that he met
with assistant state attorneys in October 2010 and was provided
with paperwork pertaining to Smith’s case at that time. Haney also
stated that he was not transferred back from prison for his
December 2010 deposition; he was not even transferred to prison
until January 2011. Haney said that he falsely testified that Smith
confessed to him because he and Smith had a falling out prior to
- 42 - Haney’s arrest in April 2008. Haney also testified that Smith did
not ask him to lie on the stand the Monday before he testified at
Smith’s trial. The trial court concluded that “Haney’s recantation is
unreliable, devoid of credibility, and demonstrably false,” and not
likely to produce an acquittal on retrial.
In order to be entitled to relief based on a claim of newly
discovered evidence, a defendant must show that (1) the evidence
was unknown by the trial court, party, or by counsel at the time of
trial, and it must appear that defendant or his counsel could not
have known of it by the use of diligence, and that (2) the evidence is
of such a nature that it would probably produce an acquittal on
retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). With
regard to recanting testimony, we have explained:
“Recantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial. In determining whether a new trial is warranted due to recantation of a witness’s testimony, a trial judge is to examine all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. ‘Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.’ Only when it appears that, on a new trial, the witness’s testimony
- 43 - will change to such an extent as to render probable a different verdict will a new trial be granted.”
Sweet v. State, 248 So. 3d 1060, 1066 (Fla. 2018) (quoting Consalvo
v. State, 937 So. 2d 555, 561 (Fla. 2006)). And regarding our role in
reviewing a trial court’s credibility determination of the recanting
witness, we have explained:
“When reviewing a trial court’s determination relating to the credibility of a recantation, this Court is ‘highly deferential’ to the trial court and will affirm the lower court’s determination so long as it is supported by competent, substantial evidence.” Lambrix v. State, 39 So. 3d 260, 272 (Fla. 2010) (quoting Heath v. State, 3 So. 3d 1017, 1024 (Fla. 2009)). “Postconviction courts hold a superior vantage point with respect to questions of fact, evidentiary weight, and observations of the demeanor and credibility of witnesses.” Ibar v. State, 190 So. 3d 1012, 1018 (Fla. 2016). “Unlike this Court, ‘the trial judge is there and . . . see[s] and hear[s] the witnesses presenting the conflicting testimony. The cold record on appeal does not give appellate judges that type of perspective.’ ” Spann v. State, 91 So. 3d 812, 816 (Fla. 2012) (quoting State v. Spaziano, 692 So. 2d 174, 178 (Fla. 1997)).
Id. at 1066 (alterations in original).
The trial court’s determination that trial counsel’s testimony
that Smith told him that he did give Haney a detailed confession
regarding the murders was more credible that Haney’s recantation
is supported by competent, substantial evidence. Haney is
- 44 - incredible because he has lied under oath and his testimony at the
evidentiary hearing completely contradicted his trial testimony and
other evidence presented.
Moreover, even if Haney’s recantation were determined to be
credible, Smith would still not be entitled to relief. If there were a
retrial at which Haney did not testify that Smith confessed to him,
there would still be two witnesses to testify that Smith confessed to
them as well as an eyewitness to Smith shooting Desmond
Robinson. Thus, the absence of Haney’s testimony of Smith’s
confession at a retrial would not probably produce an acquittal on
retrial, nor would the additional absence of State’s exhibits 12 and
85 probably produce an acquittal on retrial. Smith is therefore not
entitled to relief on this claim.
II. PETITION FOR A WRIT OF HABEAS CORPUS
In his petition for a writ of habeas corpus, Smith raises eight
claims of ineffective assistance of appellate counsel. We have
explained the applicable standard of review for claims of ineffective
assistance of appellate counsel as follows:
“The standard of review for ineffective appellate counsel claims mirrors the Strickland standard for ineffective assistance of trial counsel.” [Wickham v. State, 124 So.
- 45 - 3d 841, 863 (Fla. 2013)]. Specifically, to be entitled to habeas relief on the basis of ineffective assistance of appellate counsel, the defendant must establish
[first, that] the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, [that] the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986)). Further, “appellate counsel cannot be deemed ineffective for failing to raise nonmeritorious claims.” Valle v. Moore, 837 So. 2d 905, 908 (Fla. 2002).
England v. State, 151 So. 3d 1132, 1140 (Fla. 2014).
We now address each claim of ineffective assistance of
appellate counsel.
A. Failure to raise a claim that the trial court erred in overruling hearsay objections regarding testimony from three witnesses
Smith first claims that appellate counsel was ineffective for
failing to raise a claim that the trial court erred in overruling
hearsay objections to testimony from Ray Dukes, Justin Harper,
- 46 - and Detective Nelson when each of these witnesses repeated at trial
what Breon Williams told him.
At trial, Breon Williams testified that before he fled the Ahmad
Drive house, he saw Smith shoot Desmond Robinson. Ray Dukes
testified that a few days after the murders on Ahmad Drive,
Williams told him that he and Smith went to the house to purchase
narcotics and while Williams was counting his money, he heard
Smith say “give it up” and gunshots before running out the back
door. Justin Harper testified at trial that two days after the
murders, Williams told him that he “took a guy named Terry to go
purchase some drugs and somehow the guy Terry tried to rob the
people,” after which Williams ran out the back door. Detective
Nelson testified that in January 2009, Williams told him that he
saw Smith shoot Robinson.
Prior to the statements coming in through Dukes and Harper,
trial counsel objected on hearsay grounds, and the trial court
overruled the objection, finding the statements to be admissible
prior consistent statements under section 90.801(2)(b) “to rebut, if
not express, then certainly an implied fabrication based on
improper influence or other motives of favorable treatment with the
- 47 - State, things of that sort.” Smith lodged a hearsay objection to the
prior consistent statement coming in through Detective Nelson
during Detective Nelson’s direct examination, which was also
overruled.
We have said:
With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal, this Court evaluates the prejudice or second prong of the Strickland test first. In doing so, we begin our review of the prejudice prong by examining the specific objection made by trial counsel for harmful error. A successful petition must demonstrate that the erroneous ruling prejudiced the petitioner. If we conclude that the trial court’s ruling was not erroneous, then it naturally follows that habeas petitioner was not prejudiced on account of appellate counsel’s failure to raise that issue. If we do conclude that the trial court’s evidentiary ruling was erroneous, we then consider whether such error is harmful error. If that error was harmless, the petitioner likewise would not have been prejudiced.
Jones v. Moore, 794 So. 2d 579, 583-84 (Fla. 2001).
The trial court’s admission of Williams’ prior consistent
statements through Dukes and Harper was not erroneous. When
cross-examining Williams at trial, trial counsel pointed out that
Williams initially denied knowing anything about the shooting for
the first two hours that the police questioned him in 2009, and that
- 48 - it was not until the police started talking about the possibility of
charging Williams and him spending the rest of his life in prison
that Williams implicated Smith. That was when the motive to lie
arose.
Trial counsel also suggested that Williams’ implication of
Smith was only a regurgitation of what the police had told him by
pointing out that in the two hours that Williams lied to the police
and denied knowing anything about the murders, the police were
sharing information with him regarding what they knew about the
murders. And trial counsel implied that because Williams
ultimately cooperated with the police and gave them the information
they wanted to hear, he was never arrested for anything having to
do with the events surrounding the murders.
Had this issue been raised on appeal, we would have
concluded that the trial court did not abuse its discretion in
admitting the statements as prior consistent statements through
Dukes and Harper to rebut trial counsel’s implication during cross-
examination of Williams that his testimony that Smith was
responsible for the murders was the result of improper influence,
motive, or recent fabrication. Because the trial court’s ruling was
- 49 - not erroneous, Smith was not prejudiced by appellate counsel’s
failure to raise this issue.
As to the prior consistent statement that came in through
Detective Nelson, had the issue been raised on appeal, we would
have concluded that the trial court erred in overruling Smith’s
objection, because Williams’ prior consistent statement to Detective
Nelson implicating Smith in the murders was not made until after
the alleged improper influence or motive arose. Despite the fact
that we would have concluded that the statement was admitted in
error, Smith would not have been entitled to relief because the
improper admission of prior consistent statements is subject to
harmless error review, Chandler v. State, 702 So. 2d 186, 198 (Fla.
1997), and any error would have been deemed harmless, because
the substance of Detective Nelson’s testimony was already properly
before the jury. Thus, Smith was not prejudiced by appellate
counsel’s failure to raise this claim on appeal and he is not entitled
to relief on this claim.
- 50 - B. Failure to raise a claim that the trial court erred in sustaining the State’s relevancy objection to Anthony Nixon’s possible bias
Smith argues that the trial court erred in sustaining the
State’s relevancy objection and prohibiting the defense from
inquiring of Anthony Nixon why he did not trust the police, and that
appellate counsel was ineffective for failing to raise the error on
appeal.
Nixon testified on direct examination that he lives across the
street and four houses down from where Robinson lived on Ahmad
Drive. On the night of the murders, Nixon was sitting in his carport
when he heard gunshots from the direction of Robinson’s house.
He did not call the police after hearing the gunshots because,
according to Nixon, the police do not have a good reputation and he
does not trust them. After the gunshots, Nixon saw a frantic
woman running up and down the sidewalk looking for help and a
man, known to him only as “Kirk,” retrieve a scooter from
Robinson’s driveway. Nixon said the police arrived thirty to forty-
five minutes after the gunshots, but he did not talk to them.
On cross-examination, Nixon was asked why he does not trust
the police, but the court sustained the State’s relevance objection.
- 51 - Nixon was then asked if the reason he did not trust or call the
police was based on his past experience. Nixon replied, “Yes,”
before another relevance objection was made and sustained.
The jury heard that Nixon did not trust the police based on his
past experiences. There was no proffer made at trial of what Nixon
would have said had he been permitted to explain specifically what
led to his distrust of the police. Smith has failed to make a
coherent argument as to why, beyond what the jury heard, the
specific past experiences of Nixon’s with the police that led to his
distrust of them would have been relevant. Thus, we cannot
conclude that the trial court abused its discretion in sustaining the
objection. Had the claim been raised on appeal, it would have been
deemed meritless, and appellate counsel cannot be found ineffective
for failing to raise a meritless claim. Further, Smith has failed to
explain in his petition how the alleged deficiency “compromised the
appellate process to such a degree as to undermine confidence in
the fairness and correctness of the appellate result.” Wilson v.
Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985).
- 52 - C. Failure to raise a claim that the trial court erred in overruling the objection to Edward Haney’s testimony that Haney did not believe Raylan Johnson’s confession
At trial, Edward Haney testified that in the days after the
murders, Raylan Johnson told Haney that he killed some people on
Ahmad Drive. The State asked Haney whether he believed Raylan
Johnson. Smith objected to the question as calling for speculation.
The objection was overruled, and Haney responded, “No.” Smith
claims that the trial court erred in overruling his speculation
objection and allowing Haney to give improper opinion testimony,
and that appellate counsel was ineffective for failing to raise the
error on appeal. We disagree.
First, the trial court did not err in overruling Smith’s
speculation objection. The question to Haney was whether he
believed Johnson; the answer to that question did not require
Haney to speculate. Second, Smith argues in his petition that
Haney’s response was an improper opinion, but that is a different
legal ground for an objection. Thus, an objection to improper
opinion was not properly preserved. See Chamberlain v. State, 881
So. 2d 1087, 1100 (Fla. 2004) (“It is well-settled in Florida that ‘[t]o
be preserved for appeal, “the specific legal ground upon which a
- 53 - claim is based must be raised at trial and a claim different than
that will not be heard on appeal.” ’ ” (quoting Spann v. State, 857
So. 2d 845, 852 (Fla. 2003))). We have held that “[a]ppellate
counsel is not ineffective for failing to raise issues not preserved for
appeal.” Medina v. Dugger, 586 So. 2d 317, 318 (Fla. 1991); Jones,
794 So. 2d at 587 (“[A]ppellate counsel cannot be ineffective for not
raising unpreserved claims.”). Smith is therefore not entitled to
relief on this claim.
D. Failure to raise a claim that the trial court erred in denying Smith’s motion for mistrial regarding Jonathan Peterson’s testimony that he had previously seen Smith in possession of a ten-millimeter handgun
During direct examination, Jonathan Peterson testified that
when he, Raylan Johnson, and Ullysses Johnson went to pick
Smith up in the area of Ahmad Drive shortly after the murders,
Smith said that he had shot three people and was in possession of a
gun. Peterson knew that the gun Smith had in his possession at
the time was a ten-millimeter because he had seen the same gun,
which he knew to be a ten-millimeter, in Smith’s possession on
prior occasions. Following Peterson’s direct examination, defense
counsel made a motion for mistrial, which the court denied.
- 54 - A motion for mistrial should only be granted “when an error is
so prejudicial as to vitiate the entire trial.” Salazar v. State, 991 So.
2d 364, 372 (Fla. 2008) (quoting England v. State, 940 So. 2d 389,
401-02 (Fla. 2006)). “[T]his Court reviews a trial court’s ruling on a
motion for mistrial under an abuse of discretion standard.” Id. at
371. Because the trial court did not abuse its discretion in denying
Smith’s motion for mistrial, had a claim of error regarding the
denial of the motion been raised on appeal, it would have been
deemed meritless; therefore, appellate counsel was not ineffective
for failing to raise such a claim.
The prerequisite to the admissibility of evidence is relevancy.
Wright v. State, 19 So. 3d 277, 291 (Fla. 2009). “The concept of
‘relevancy’ has historically referred to whether the evidence has any
logical tendency to prove or disprove a fact. If the evidence is
logically probative, it is relevant and admissible unless there is a
reason for not allowing the jury to consider it.” State v. Taylor, 648
So. 2d 701, 704 (Fla. 1995) (quoting Charles W. Ehrhardt, Florida
Evidence § 401.1, at 95-96 (1994)). All evidence tending to prove or
disprove a material fact is admissible, unless precluded by law. See
§§ 90.401-90.402, Fla. Stat. (2010). But even “[r]elevant evidence is
- 55 - inadmissible if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of issues, misleading the
jury, or needless presentation of cumulative evidence.” § 90.403,
Fla. Stat. (2010).
The fact that the gun Smith possessed immediately after the
murders was a ten-millimeter was highly relevant and probative
because ten-millimeter casings were found at the crime scene, and
all wounds to the victims were consistent with ten-millimeter
bullets. The basis of Peterson’s knowledge was also relevant and
probative. The fact that Peterson had seen Smith with that gun
previously was necessary to explain how Peterson knew the gun
was a ten-millimeter; it was not used to confuse the issues or
mislead or improperly inflame the jury nor was its probative value
outweighed by those dangers.
Even if we were to conclude that Peterson’s testimony that
Smith had possessed the gun on prior occasions was improper, we
would still disagree with Smith’s contention that the trial court
erred in denying the motion for mistrial. Any error in allowing the
jury to hear this testimony was not so prejudicial as to vitiate the
entire trial. Thus, any claim raised on appeal regarding the denial
- 56 - of the motion for mistrial would have been rejected as meritless,
and appellate counsel was therefore not ineffective for failing to
raise a meritless claim.
E. Remaining claims of ineffective assistance of appellate counsel
Each of Smith’s remaining claims of ineffective assistance of
appellate counsel5 alleges that appellate counsel was ineffective for
failing to raise a claim of fundamental error on direct appeal. As
previously explained, “appellate counsel cannot be ineffective for
not raising unpreserved claims.” Jones, 794 So. 2d at 587.
Moreover, claims of ineffective assistance of appellate counsel
raised in a petition for a writ of habeas corpus that are
“permutations of claims” raised in a postconviction motion are
5. The remaining claims are (1) appellate counsel was ineffective for failing to raise a claim of fundamental error based on prosecutorial misconduct by soliciting testimony that three witnesses had a generalized fear of Smith; (2) appellate counsel was ineffective for failing to raise a claim of fundamental error based on the admission of evidence of Smith’s uncharged crimes; (3) appellate counsel was ineffective for failing to raise a claim of prosecutorial misconduct based on the State’s implication that Smith was guilty by association with the State’s witnesses; and (4) appellate counsel was ineffective for failing to raise a claim of fundamental error based on the State’s introduction of the detectives’ opinions as to Smith’s lack of remorse.
- 57 - procedurally barred. Calhoun v. State, 312 So. 3d 826, 854 (Fla.
2019), cert. denied, 141 S. Ct. 394 (2020). Defendants cannot
relitigate the substance of postconviction claims in a habeas
petition under the guise of ineffective assistance of appellate
counsel. Id.; see Knight v. State, 923 So. 2d 387, 395 (Fla. 2005)
(“[C]laims [that] were raised in [a] postconviction motion . . . cannot
be relitigated in a habeas petition.”). Each of Smith’s remaining
claims is a permutation of a subclaim raised in his postconviction
appeal and each is therefore procedurally barred from being raised
in this habeas petition.
III. CONCLUSION
For the reasons stated above, we affirm the postconviction
court’s order denying Smith’s motion for postconviction relief as to
the guilt phase and deny the petition for a writ of habeas corpus.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur. COURIEL and GROSSHANS, JJ., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County, Adrian G. Soud, Judge
- 58 - Case No. 162009CF004417AXXXMA And an Original Proceeding – Habeas Corpus
Robert S. Friedman, Capital Collateral Regional Counsel, Karin L. Moore and Elizabeth C. Spiaggi, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida,
for Appellant/Petitioner
Ashley Moody, Attorney General, and Jason William Rodriguez, Assistant Attorney General, Tallahassee, Florida,
for Appellee/Respondent
- 59 -
Related
Cite This Page — Counsel Stack
Terry Smith v. State of Florida & Terry Smith v. Mark S. Inch, etc., Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-smith-v-state-of-florida-terry-smith-v-mark-s-inch-etc-fla-2021.